Citation: [2013] NSWSC 1475
Court: Supreme Court of New South Wales
Date: 6 September 2013
Judge: Campbell J
Background
The applicant was convicted by jury of murdering her de facto husband, who died from a single gunshot to the back of his head while in bed at his home in January 2002. The Crown case was that the applicant was present at the premises and aided and abetted the killer. An appeal to the Court of Criminal Appeal was dismissed in 2007, and the High Court refused special leave to appeal.
In June 2011, the applicant sought a further review of her conviction under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). She argued that five groups of evidence, most of which were available but not produced at trial, gave rise to a doubt or question as to her guilt sufficient to warrant either a judicial inquiry or referral to the Court of Criminal Appeal.
The five categories of fresh or unused material included evidence relating to the applicant's relationship with her co-accused, evidence about the co-accused's conduct, forensic or circumstantial material, and evidence that it was submitted could support an inference consistent with innocence. The applicant's written submissions were prepared by senior counsel and were responded to in detail by the Crown.
Legal Issues
- Whether the new or previously unused evidence, considered together with the trial evidence, gave rise to a "doubt or question" as to the applicant's guilt under s 79(2) of the Crimes (Appeal and Review) Act 2001 (NSW)
- Whether the application should be refused on the basis that the matters raised had already been fully dealt with at trial and on appeal
- Whether the five categories of new evidence, assessed cumulatively and not piecemeal, left open a reasonable inference consistent with innocence
Decision
Campbell J set out the governing legal principles by reference to Johnson J's analysis in Application of Peter James Holland [2008] NSWSC 251. A Part 7 application is an administrative, not judicial, function. The test is whether the material causes the decision-maker unease or a sense of disquiet about allowing the conviction to stand, not whether the new evidence would necessarily lead to an acquittal.
His Honour accepted the applicant's submission that the five categories of new evidence should not be assessed in isolation from each other. The correct approach required weighing all of the new material together with all of the circumstances established at trial, to ask whether a reasonable inference consistent with innocence remained open.
Applying that approach, Campbell J concluded that the new material did not add meaningfully to what had already been placed before the jury. The issues addressed by the new evidence had been fully dealt with during the trial. The Court of Criminal Appeal had already conducted a real review of the evidence and arguments and upheld the conviction as open on the evidence.
On the question of the co-accused potentially giving evidence, his Honour accepted the Crown's submission that oral evidence from the co-accused would not have materially advanced the jury's understanding of the relationship between him and the applicant beyond what was already available. Overall, none of the five groups of evidence, individually or cumulatively, produced any feeling of unease or disquiet about the conviction.
Orders Made
The application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) was refused.
Key Takeaways
- A Part 7 review under the Crimes (Appeal and Review) Act 2001 (NSW) is an administrative function, not a judicial proceeding, and is not intended to provide a further avenue of appeal after ordinary avenues have been exhausted.
- The applicable test requires the decision-maker to assess whether the new material, as a matter of practical reality, gives rise to unease or disquiet about the conviction, not merely whether some evidence consistent with innocence can be identified.
- New or previously unused evidence must be assessed cumulatively, together with all circumstances established at trial, rather than considered piecemeal or in isolation from the broader body of evidence.
- Where matters raised in a review application were fully litigated at trial and on appeal, and the Court of Criminal Appeal upheld the conviction as open, that history is a significant factor weighing against granting a referral or inquiry.
- Refusing the application does not require the decision-maker to exclude entirely evidence that might have been subject to the fresh evidence rule; the flexible nature of the jurisdiction means that rule does not strictly apply at the ss 78-79 stage.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 75, 78, 79
- Evidence Act 1995 (NSW)
Cases
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Friend v Regina [2007] NSWCCA 41
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30
- Mallard v R (2005) 224 CLR 125
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- R v Hillier [2007] HCA 13; 228 CLR 618
- Shepherd v The Queen [1990] HCA 56; 170 CLR 573
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
- Fox v Percy [2003] HCA 22; 214 CLR 118
- Clark v Ryan (1960) 103 CLR 486
- MA v R [2013] VSCA 20